What is Common Law Marriage
Common law marriage is a legal relationship that may exist without having gone through the traditional marriage ceremony. A common law marriage differs from a ceremonial marriage in that a husband and wife enter into it without having had an official ceremony. Such a marriage is entered into by the husband and wife mutually agreeing to be husband and wife and affirmatively doing so.
The requirement for the existence of a common law marriage is that the parties approve of the marriage and hold themselves out as husband and wife. A common law marriage does not require a marriage license and is entered into by the husband and wife through their affirmative behavior of holding themselves out to others as being married. Importantly, for a common law marriage to exist , the parties must have intended to enter into a legally binding marriage. A common law marriage is a contract and is thus governed by contract principles.
In the past, common law marriages were fairly prevalent in Rhode Island. It was accepted that a common law marriage could be recognized even without a marriage license.
In 1966 (the year I was born, by the way) the Rhode Island Legislature passed a statute that required people wishing to marry in the State of Rhode Island to obtain a marriage license. The statute specifically stated that no common law marriage would be recognized in the State after 1966. This statute is called R.I.G.L. 15-1-3. Any common law marriage entered into prior to 1966 was deemed valid however. At present, there are a few unreported decisions by the Rhode Island Supreme Court that support the theory that a common law can be recognized even today, but these are few and far between.
Common Law Marriage in R.I
Common Law Marriage in Rhode Island is recognized but may be difficult to prove. Under Rhode Island General Laws § 15-1-1, provision is made for the voluntary establishment of a common law marriage. Common law marriage is defined as, "any form of marriage other than traditional ceremonial marriage." The statute further provides, "In determining the existence or nonexistence of any common law marriage that is contested, the burden of proof shall be on the party asserting the existence of the marriage to prove the existence thereof by clear and convincing evidence."
Interestingly, under G.L. 1956 § 15-1-7, the validity of a common law marriage entered into prior to Café La France, Inc. v. Brassard, 526 A. 2d 495 (R.I. 1987), is "to be determined in the same manner as the validity of other foreign marriages." In Café LaFrance, the Rhode Island Supreme Court held that Rhode Island’s public policy was contrary to common law marriage and such marriages entered into in Rhode Island after the decision would be deemed invalid within the state.
Rhode Island courts have impliedly determined that common law marriages established abroad prior to the Café La France decision would be valid in Rhode Island.
Requirements for Common Law Marriage in R.I
In Rhode Island, couples may be deemed to have a common law marriage if they cohabitate and hold themselves out to be married. In order to qualify as a common law marriage, the parties must satisfy two criteria.
First, the parties must cohabitate for an extended period of time. Legal experts are in disagreement as to when cohabitation begins when looking at the statutory requirement – is it from the first day a couple begins to share their residence, or is it only once a couple begins to live together in a manner consistent with marriage. Courts that have held that the latter view is correct, have held that engaged couples living together would not qualify as cohabitators, whereas courts that hold the former view to be correct, have held that parties indulging in premarital sexual conduct would qualify as cohabitating prior to marriage. Courts attempting to determine legislative intent often look to the general enacting statute for the legislation, and when no such statute exists they look to the statutory history, the subject of the act, the purpose of the act, and sometimes even to an undesirable or absurd result should an interpretation be given.
The second requirement is that the parties hold themselves out to be currently married. This requirement is satisfied when the parties take on the legal obligations and the privileges conferred by marriage. While it is not essential that the couple use the term husband and wife or the Indian word "sati," the couple must at some point hold themselves out to be married.
Legal Rights and Responsibilities
Couples living in a common law marriage in Rhode Island have the same legal rights as married couples with specific government benefits. This includes sharing a homestead exemption and certain other property rights. Property acquired while living together in a common law marriage is usually considered marital property. In general, an equitable division of property is made by the courts in a divorce if a common law couple separates.
Common law married couples are eligible for family leave benefits, disability benefits, and Social Security benefits. They are also eligible for benefits under a spouse’s health and life insurance plans. Also, if one common law spouse dies, the surviving spouse can inherit property and be eligible for Social Security benefits if the relationship is recognized as valid in the state where the deceased lived.
In terms of child custody, if a child is born into a marriage, then the two spouses are regarded as the child’s parents. A court may give primary physical custody to one of the parents, but joint legal custody of the child’s decision-making authority. For a common law marriage, the same rules apply in which custody is determined based on what is in the child’s best interests. However, if an unmarried couple raises children together, each parent may be viewed as having some parental rights (with shared legal custody) while the other parent has physical custody. In this case, the child’s primary caregiver has most of the decision-making authority about the child’s education and health.
Proving a Common Law Marriage
Carving out an exception to the general rule of couples needing a marriage license before they’re legally married, the Rhode Island Supreme Court has, on occasion, recognized common law marriage in the state.
But for the conventional couple, hoping to invoke Rhode Island’s common law marriage laws isn’t going to cut it. Common law marriage is a rather outdated notion that was far more prevalent back in the 18th and 19th centuries, when so few couples had a way to obtain a marriage license.
Usually, though, their couples had a way to prove their marriage. In fact, couples in Rhode Island who pursue a common law marriage are required to sign a pre-printed statement that includes: "Well knowing that no provision is made by Rhode Island law for such a contract."
That’s why with regard to the requirement that couples intending to marry need to obtain a marriage license , it’s sometimes said that "Rhode Island recognizes to much differentiate means nothing at all."
When moved to separate – or divorce – a common law marriage, the court can ask the couple about the circumstances under which they began living together. Questions could include:
● Did they intend to marry?
● Did they hold themselves out as husband and wife?
● Did they share incomes, lives and home?
To prove a common law marriage, the required elements are:
● Cohabitation, or living together
● The couple’s mutual intent to be married
● The couple’s public representation of themselves as a married couple.
Evidence of marriage can include a shared last name or shared bank accounts, even if the couple has not agreed to actually be married.
A party need only file a simple complaint to start the proving of an alleged common law marriage.
Ending a Common Law Marriage
Because common law marriage is not recognized in this State, there is no statutory authority that governs the dissolution of a common law marriage. The dissolution of a common law marriage is governed by general divorce law.
However, even if a couple does not fit the criteria for a legal marriage in Rhode Island, the Court may nonetheless find that a marriage existed and grant dissolution of marriage under "common law" principles. The Court will dissolve a common-law based relationship if it finds the following:
1. That the parties had a mutual intent to become married. This mutual intent is established by proof that the parties held themselves out to others as married, such as by using the same last name, filing joint tax returns, using the same address, etc.
2. That the parties entered into the relationship with the capacity to marry. As previously noted the parties cannot have a close blood relationship or be under an age that legally prohibits them from marrying in Rhode Island. The Court also considers whether the parties were married in another State in those situations where a party claims a common law marriage in lieu of being a party to a formalized marriage obtained in another State.
After the Court determines that a common law marriage existed, the Court will then conduct a "equitable" distribution of property between the parties. This concept is very similar to the process applied in a divorce proceeding. However, in a divorcing couple, the Court follows the equitable distribution statute set forth in the General Laws of the State of Rhode Island §15-5-16.2. In this case, however, the Court should apply the concept of unjust enrichment. The parties will be treated as partners of a joint enterprise with credit given to the non-monied partner for any contribution that is equitable under the circumstances.
Common Myths
There are several common misconceptions about common law marriage in Rhode Island. These misconceptions sometimes cause otherwise smart people to put themselves at risk when it comes to the division of property. Some of the most common misconceptions include:
If you are involved in a long-term relationship with someone (generally five years or more), and that person supports you, you might be in a common law marriage. As a general rule, where there is an economic disparity between two people in an economically dependent relationship (the paralegal versus the attorney), even if the two people are not married and have not executed a Cohabitation Agreement, there may be support obligations in the event of a breakup.
The Rhode Island Courts will generally enforce agreements between unmarried parties regarding the disposition of property. The Courts will not enforce agreements that are clearly marital in nature, such as promises to stay together forever, or marry one another in the future. However , where an agreement establishes objective measures of compensation or expectations of the parties, the Courts will allow you to proceed to court. So, as a rule of thumb, if your agreement is some sort of promise to marry or stay together, or provides for some sort of bounty or reward in the event you achieve some goal (marriage), you will not be able to enforce it in court. On the other hand, if your agreement enumerates actual objectives, such as who pays which bills, or how earnings of the couple will be divided in the event the relationship ends, the Courts will generally allow you to proceed to court.
Common law marriage is dead in Rhode Island. Even if you were involved in a long-term relationship with a lot of promises, the entire concept of common law marriage has been eradicated. In a rare few situations, the doctrine of equitable estoppel may allow a party to establish a de-facto common law marriage based on how the parties presented themselves to the world.